Obtaining Property By Deception

obtaining property by deception
Obtaining property by deception is charged where a person dishonestly engages in a deception and as a result obtains ownership or control of property belonging to another person. Examples of this include

  1. theft of money from an employer by way of deceptive conduct, such as illegitimate refunds; or
  2. use of a stolen credit card to purchase items or withdraw funds from an ATM.

This offence is governed by section 81 of the Crimes Act 1958 (‘the Act’).

Jurisdictional limits

Obtaining property by deception is an indictable offence. This means that it may be heard in the higher courts. However it is most often dealt with in the Magistrates’ Court. The seriousness of the circumstances surrounding the charge will determine in what jurisdiction the matter is heard.

Generally a single charge of obtaining property by deception is heard in the Magistrates’ Court. If the value of the goods exceeds $100,000.00 or if it is attached to more serious dishonesty charges, it goes to the higher courts. The circumstances surrounding your charges will determine which Court is appropriate. Our solicitors can provide you with advice in relation to this.

Sentencing range: The offence carries a maximum penalty of 10 years imprisonment. However the maximum term of imprisonment that can be imposed in the Magistrates’ Court for a single offence is two years. Further, the maximum aggregate total sentence that can be imposed in the Magistrates’ Court is five years.

The seriousness of the conduct engaged in will be determined by the court by reference to the value of the property, the sophistication of the deceptive scheme and time frame of the offending, among other things. The facts surrounding your matter will allow our solicitors to advise you of likely outcomes.

Obtaining Property By Deception: The elements

There are four elements that constitute the offence of obtaining property by deception:

Element 1: The accused obtained property belonging to another;

The accused “obtains” property by deception if he or she obtains ownership, possession or control of it.1 The accused does not need to have obtained the property for him or herself. This element will be satisfied if s/he obtained the property for another person, or enabled another person to obtain or retain the property.2

The thing that is obtained must be property. Property is defined in the Act to include money and all other property real or personal including things in action and other tangible property.3

Element 2: The accused did so with the intention of permanently depriving the other of the property;

The jury or Magistrate must consider the accused’s state of mind at the time when the property was obtained. If the accused had an intention to permanently deprive the owner of the property at that time then this element will be satisfied, even if the accused later decided to return the property.4

If the accused only had an intention to temporarily deprive the owner of his or her property, this element will not be met. He or she must have already formed the intention to permanently deprive the owner of the property at the time it was obtained.

If the Accused obtains property and is intending to return equivalent but not identical property, they will have an intention to permanently deprive the owner of the property.5

Element 3: The accused used deceit to obtain the property;

The third element of Obtaining Property By Deception requires the accused to have obtained the property by deceit.6 If the property is obtained without any deception, no offence is committed.

The deception must cause the obtaining. Any deception, whether deliberate or reckless, includes an act, thing done, omitted to be done or representation that is the casual link for obtaining the financial advantage. A deception may take place where the Accused does or omits to do something with the intention of causing a computer system or machine to make a response that the accused is not authorised to cause the computer system to make.7

For example, a person who obtains property by using a cheque which is subsequently dishonoured, and which he or she knows he has not the funds to meet obtains by deception. Manipulation of an automatic teller machine (ATM) to make an unauthorised response is another example.

Element 4: The accused obtained the property dishonestly.

The fourth element, in addition to the requirement of deceit, requires dishonesty. The prosecution must prove that when the Accused, by deception, obtained the property, he or she was acting dishonestly.8 That being that the accused himself or herself did not believe that he or she had, in all the circumstances, a legal right to obtain the property.9

In a trial, the questions a judge will ask the jury to consider are:

  1. Did the accused obtain property that belonged to another person?
    (Consider – Did the accused obtain ownership, possession or control of property belonging to another person?)
    If yes, then go to 2.
    If no, then the accused is not guilty of obtain property by deception.
  2. Did the accused intend to permanently deprive another person of that property?
    (Consider – Did the accused intend that the owner would never get the property back?)
    If yes, then go to 3.
    If no, then the accused is not guilty of obtaining property by deception.
  3. Did the accused obtain property by deception?

    3.1 Did the accused make a false representation?
    (Consider – Did the accused make the representation alleged by the prosecution. Was that representation false when it was made?)
    If yes, then go to 3.2.
    If no, then the accused is not guilty of obtaining property by deception.

    3.2 At the time of making the representation, did the accused know that the representation was false, or that it was probably false?

    If yes, then go to 3.3.
    If no, then the accused is not guilty of obtaining property by deception.

    3.3 Did the accused intend that the false representation would be acted upon?

    If yes, then go to 3.4.
    If no, then the accused is not guilty of obtaining property by deception.

    3.4 Did the accused obtain the property as a result of making the false representation?
    (Consider – Did the false representation cause a relevant person to give the accused ownership, possession or control of the property?)

    If yes, then go to 4.
    If no, then the accused is not guilty of obtaining property by deception.

  4. Did the accused obtain the property dishonestly?
    (Consider – Has the prosecution proved that the accused did not believe that he/she had a legal right to obtain the property?)
    If yes, then the accused is guilty of obtaining property by deception (as long as you have also answered Yes to questions 1, 2 and 3).
    If no, then the accused is not guilty of obtaining property by deception.
Possible defences to Obtaining Property By Deception

The offence of obtaining property by deception can raise legal issues in relation to the intention of the accused. If a jury considers that it is reasonably possible that the Accused did not intend to permanently deprive the owner of the property deceitfully obtained, the offence is not made out. This is the same for an intention to temporarily deprive. The requisite intention to permanently deprive must be present.

Lack of knowledge is also a defence available to the charge if the accused did not have knowledge that their representation by words or conduct was false or probably false at the time it was made. In determining this part of the element, a jury must be satisfied that the Accused him or herself knew, or knew of the likelihood that the representation was untrue. The objective reasonable person test is not applied in this instance.

Other defences available include factual dispute, duress, wrongful identification, mental impairment, honest and reasonable mistake or belief or necessity may apply.

Sentencing outcomes in the Magistrates’ court

The Sentencing Advisory Council has released sentencing statistics for the sentencing of obtaining property by deception in the Magistrates’ Court between July 2011 to June 2014. Over the three year period, 4,414 cases were before the Court. 27.6% of people sentenced received a period of imprisonment, 13.8% received a wholly suspended period of imprisonment, 2.9% received a partially suspended sentence, 14.9% received a fine, and about 26.2% received some form of community based order.

The most common length of imprisonment imposed was between 3 and 6 months with 25.6% of persons imprisoned sentenced within that range.

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.

Sentencing outcomes in the higher courts

The Sentencing Advisory Council has released sentencing statistics for the sentencing of obtaining property by deception in the County and Supreme Court’s between July 2010 to June 2015. Over the five year period, 1,084 cases were heard before the higher courts. 73.6% of people sentenced received a period of imprisonment, 8.5% received a wholly suspended period of imprisonment, 10.6% received a partially suspended sentence, 0.6% received a fine, and about 2.9% received some form of community based order.

The most common length of imprisonment imposed was less than 12 months with 44.4% of persons imprisoned sentenced within that range.

Please note that suspended sentences were abolished in the higher courts earlier than that of the Magistrates’ Court, and therefore for all offences committed on or after 1 September 2013 will not have this available as a sentencing option.

To view sentencing decisions by Victorian County Courts for the charge of Obtaining Property By Deception, visit this page.

Check out some of the criminal cases we’ve defended in court involving the offence of Obtaining Property By Deception:


[1]Section 81(2) of the Act.
[2]Ibid.
[3]Section 71(1) of the Act.
[4]R v Jost (2002) 135 A Crim R 202 (Vic CA).
[5]R v Williams [1953] 1 QB 660; R v Cockburn [1968] 1 All ER 466; R v Pace [1965] 3 Can CC 55 (NSSC) cited in Criminal Charge Book, 7.5.2.1.1 – Bench notes: Obtaining Property by Deception (21 October 2013) Judicial College of Victoria: <http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#30703.htm>.
[6]As “deception” has the same meaning in relation to the offence of obtaining a financial advantage by deception as it does for the offence of obtaining property by deception (section 82(2) of the Act), cases decided in relation to that offence will be applicable to section 81 of the Act.
[7]Section 81(4)(b) of the Act.
[8]R v Salvo [1980] VR 401; Pollard v Cth DPP (1992) 28 NSWLR 659).
[9]Ibid.